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Playing Nice

by Phyllis Pollack

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack

        Most of the cases that I mediate are in litigation. They are lawsuits in which each party has hired an attorney to represent him/her zealously, if not, aggressively. Many of these attorneys approach litigation as they would war: take no prisoners, scorching the earth as they “fight” their way to victory!

      However, a recent Harvard study reveals that these attorneys and the parties they represent may gain a lot more by playing nice. That is, “nice guys do finish first.” (Id.)

      The Harvard study, published in the March 20, 2008 issue of Nature (Volume 452, No. 7185), involved a 100 Boston-area college students playing “a punishment-heavy version of the classic one-on-one brinksmanship game of prisoner’s dilemma.” (Id.):

         “Common game theory has held that punishment makes two equals cooperate. But when people compete in repeated games, punishment fails to deliver. . . .” (Id.)


       The study found that those who used punishment were the losers. “Those who escalate[d] the conflict very often wound up doomed.” (Id.)

        In contrast, those who turned the other cheek and continued to cooperate with a nasty opponent received more rewards.

      When considered in the context of a mediation, the results of this study make sense. The purpose of mediation is to reach a resolution that meets the needs and interests of all parties concerned. Mediators (including me) often take an integrative bargaining approach (i.e., win-win) in mediation rather than a distributive bargaining approach (i.e., win-lose). If the parties accept the former approach, they often find that the deal struck in settlement is more satisfying as it meets more of their needs and interests than a deal stuck using distributive bargaining (or a zero-sum game approach). In essence, by working with the opponent (rather than against the opponent) in a cooperative manner, both parties gain more.

       In my day-to-day life as a mediator, I have seen this cooperative approach work, over and over again, resulting in settlements that meet the parties’ needs and interests. I am now happy to learn that this everyday experience has been confirmed by academia and scientific study.

         . . . Just something to think about. 


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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